Bowman v Police

[2015] NZHC 2556

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-425-30 [2015] NZHC 2556

BETWEEN

DAVID THOMAS KERRY BOWMAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	19 October 2015
Appearances:	J Ross for Appellant M McClenaghan for Respondent
Judgment:	19 October 2015

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

BOWMAN v NEW ZEALAND POLICE [2015] NZHC 2556 [19 October 2015]

[1]      Mr Bowman pleaded guilty in the District Court to a large number of charges, including a charge of engaging in threatening behaviour towards his former partner. On 30 June 2015, Judge Cook sentenced Mr Bowman to eight months three weeks imprisonment in respect of all charges.  She also issued a protection order against Mr Bowman under s 123B of the Sentencing Act 2002 (the Act)  in relation to the charge

of engaging in threatening behaviour towards his former partner.1     Mr Bowman

appeals to this Court against that aspect of the Judge’s sentence.

The facts

[2]      Mr Bowman pleaded guilty to the charge of threatening behaviour on the basis of a summary of facts with which he evidently took no dispute.  This recorded that on the morning of 17 December 2014, Mr Bowman went to his former partner’s address after having been drinking all night.   When he arrived at the address, he found that his former partner was not home.  He then got into her bed.  When his former partner returned home, she ordered him off her property.  A heated incident then occurred both inside and outside the property.  The summary records that at one point during this exchange, Mr Bowman’s former partner threw some stones at Mr Bowman.

[3]      Fortunately, a passing police patrol observed what was going on.  The police officers saw Mr Bowman walking away from the address.  He was then seen to turn around, clench his right fist, raise it in the air and run towards his former partner in a threatening manner. When he saw the police, however, he left the area.

[4]      When the police subsequently spoke to him, Mr Bowman acknowledged he had gone to the address uninvited.  He said that he and his former partner still saw each other, although they were not living together.   He said he had raised his fist after his former partner threatened to stop him having access to his child.   He maintained that he did not intend to assault his former partner, and that he merely

sought to threaten her.  He said he had gone to the address to intimidate her.

1      Police v Bowman [2015] NZDC 12342.

The appeal

[5]      The jurisdiction to make a protection order under s 123B of the Act arises where the Court is satisfied of two matters.  The first is that the making of the order is necessary for the protection of the victim of the offence.2   The second is that the victim of the offence does not object to the making of the order.3

[6]      During the hearing in the District Court, the prosecution apparently advised the Judge that Mr Bowman’s former partner did not object to the making of a protection order.  The Judge did not, however, expressly say why she considered the making of the order was necessary.  For that reason both counsel agreed that I should approach that issue afresh.

The argument for Mr Bowman

[7]      Mr Ross submits that it is not necessary for the Court to make a protection order.  He points out that this is the first occasion on which Mr Bowman has engaged in conduct of this type towards his former partner.   He notes that Mr Bowman’s former partner has been visiting Mr Bowman in prison, and that the relationship appears to be on the mend. A statement taken from Mr Bowman’s former partner on

19 October 2015 indicates that Mr Bowman has promised that he is going to change. The statement  goes  on  to  say that  Mr  Bowman’s  former partner hopes  that  he changes, but she seeks a protection order at this point so that she and her child will be safe in the medium term.

Decision

[8]      The circumstances of the present offending give rise to several issues of concern.  The first is that Mr Bowman saw fit to go into his former partner’s home uninvited after he had been drinking.  Not satisfied with that, he was also prepared to get into her bed.   The fact that he intended to threaten and intimidate his former

partner is also a matter of significant concern.

2      Sentencing Act 2002, s 123B(2)(b).

3      Section 123B(2)(a).

[9]      The present offending cannot be viewed in a vacuum.  It must be viewed in light  of  Mr  Bowman’s  past  history.    He  has  an  unenviable  list  of  previous convictions over the last seven years.  Of significant concern are the fact that he has several convictions for behaving threateningly, assaulting females and assaulting children.  He also has convictions for being in possession of an offensive weapon, threatening to kill and recklessly discharging a firearm.  Furthermore, he has several convictions  for  drug-related  offences  relating  in  particular,  to  cannabis.    This suggests that, at least in the past he has had an involvement with drugs.  He also has a  conviction  for  driving  with  excess  breath  alcohol.    This,  coupled  with  his behaviour in relation to the present offending, suggests that he may have an issue with alcohol.  Also of concern is the fact that Mr Bowman has numerous previous convictions for breaching Court orders.   These include three convictions for contravening protection orders in 2011.

[10]     The most recent charge of behaving in a threatening manner raises an issue of concern.  The summary of facts in respect of that offending records that on 5 July

2014, just five months before the present incident, an argument developed between his sister and her partner.   Mr Bowman was told about the argument, and became angry about how the victim had treated his sister.  He then endeavoured to force his way into the victim’s house, but was held back by his sister and girlfriend.  Whilst outside the property he was yelling abuse and verbally threatening the victim.  His sister and girlfriend eventually managed to calm him down, and he left the address. A short  time  later,  he  returned  carrying  a  large  silver-handled  knife.    He  then continued to verbally abuse and threaten the victim.   He also walked over to the victim’s motor vehicle and indicated that he was going to slash the tyres with the knife.

[11]     I accept that Mr Bowman has not previously shown an inclination to act in a violent way towards the victim of the present offending.   Nevertheless, his past history indicates that he has no compunction about resorting to violence against those around him, including those close to his family.  The fact that he was prepared to have resort to a weapon in July 2014 is obviously a matter of concern.

[12]     All of these factors persuade me that it is necessary for the protection of Mr Bowman’s  former  partner  and  her  child  that  a  protection  order  should  issue. Although his past history gives little cause for optimism, the existence of the protection order may dissuade Mr Bowman from visiting her address uninvited and engaging in intimidatory, or violent, conduct towards her.

[13]     I am therefore satisfied that the Judge was correct to issue the protection order.

Result

[14]     The appeal is accordingly dismissed.

Lang J

Solicitors:

Preston Russell Law, Invercargill
AWS Legal, Invercargill